12/01/2009 @ 6:00PM

The Pirate Bay's Heir Apparent

The world of peer-to-peer piracy is in turmoil. In April, copyright-flouting icon the Pirate Bay was ordered by a Swedish court to shut down its file-sharing service, and last week the second largest file-sharing destination, Mininova, announced that it would comply with a court order to remove all of its copyright-infringing files.

That leaves isoHunt, a peer-to-peer file-sharing search engine with 30 million unique monthly visitors and 10 million daily searches, as the biggest remaining magnet for the Web’s pirate population. It’s also attracting the same legal troubles: The Vancouver-based site is being sued by both the Motion Picture Association of America and the Canadian Recording Industry Association.

But isoHunt founder Gary Fung argues that his site won’t be the next to fall under the legal guillotine. IsoHunt, he argues, uses a different model: Unlike Mininova or the Pirate Bay, the site functions as a search engine for the “torrent” files that map connections in peer-to-peer file-sharing networks, rather than a host of those files or a forum for downloaders. That, says Fung, means the site is no more culpable than
Google
for illegal use of its search tool. To prove it, Fung countersued CRIA in August and, after that claim was rejected on a technicality, did so again last week.

Forbes spoke with Fung about his argument that isoHunt is a legal site, his refusal to actively police the content it links to and how Mickey Mouse screwed up American intellectual property law.

Forbes: This is a complicated time for peer-to-peer file-sharing sites. What does the shutdown of the Pirate Bay and the removal of copyrighted files from Mininova mean for isoHunt?

Gary Fung: As far we’re concerned, not much, for a few reasons. The Pirate Bay and Mininova are in Europe, in a different legal jurisdiction. We’re based in Canada. They don’t offer any precedents that apply to us.

We treat copyright infringement differently. The Pirate Bay made a mockery of takedown requests from copyright holders. We don’t do that. We have a robust takedown policy, removing links in our search results when copyright holders ask us to.

And finally, the nature of our Web site is also quite different. Unlike Mininova or the Pirate Bay, we’re a search engine. We index other bittorrent Web sites. So arguably we have more legitimacy as a mere information location tool.

So you compare yourselves to Google, merely a search engine with no liability for what it indexes?

Technically and in terms of our business model, we’re a lot like Google. Especially considering you can search for torrent files on Google by typing in a name and “filetype:torrent” and get only torrent files just as you would on isoHunt.

IsoHunt is less prone to lawsuits than the Pirate Bay in that you make no references to piracy on your site. But the top 10 searches that you display on the home page include newly released movies like New Moon and 2012 as well as popular piracy file sources like the well-known bootlegger “Axxo.” Is isoHunt a tool for piracy?

It’s a tool, period. People search for what they’re interested in searching for. We display our top searches just as Google does. But I don’t see that as in any way encouraging searches for copyright infringing material.

Mininova, which recently caved to a court order that it remove all of its links to copyright infringing content, also argued that it didn’t host infringing content itself. How is your case different from theirs?

Part of the answer to that question goes into Mininova’s defense arguments, which I won’t discuss. But our case is different in that we are a search engine, and Mininova is a social media site. A search engine automatically spiders the Internet. Mininova was a massive platform for people to share links, and it functioned as a directory.

What are the positive, non-infringing uses of isoHunt that you want to preserve?

Creative commons content is getting more popular by the day. Open source software is one of the reasons that bittorrent was created, to solve distribution problems for Linux developers. And there are all sorts of independent music labels that want to distribute their music for free on bittorrent. A lot of new artists see peer-to-peer as a new kind of radio.

How much of the content you link to is copyrighted?

I won’t deny that practically everything we index is copyrighted, in the sense that anything can be copyrighted, even a home video. As for whether that copyrighted content is actually authorized for distribution, we can’t know that unless we receive a copyright takedown notice.

Sites like YouTube and DailyMotion use a fingerprinting tool to remove unauthorized content automatically rather than merely responding to takedown notices. Do you use filtering software?

On that point, it’s interesting to look at what Mininova tried to do. They tried to filter their site to comply with the court’s judgment that they remove unauthorized content, but in the end, they couldn’t technically do it. Instead, they had to take out practically everything that wasn’t verified.

If they couldn’t figure out how to filter out what’s copyrighted and what’s not, we can’t do it either.

Even if we wanted to filter our content, we’d have to first download the content files being shared before we run the filter, something we don’t do. That downloading itself could give us more liability. So it’s kind of a catch-22 problem.

Instead, we’re asking content owners to work with us to tell us what’s infringing and we’ll take it down. I think that’s the most amicable arrangement.

The Pirate Bay founders were very outspoken about their opposition to copyright laws. Do you take the same approach?

The Pirate Bay believed that copyright laws should be abolished. I believe there should be copyright, but it has to change. Copyright was designed to originally last 14 years [after an author's death].
Disney
didn’t want Mickey Mouse to go into the public domain in the 1970s, so they pushed for longer and longer copyright. Today, it lasts much too long, [in some cases 100 years after an author's death]. And at the same time, content has a more limited shelf life than ever.

Even though there’s a lot of file-sharing activity, it’s been proven not to have an economic effect on the copyright holders, (according to an August study by the European Union.)

So the biggest question we should be asking is whether so-called piracy is actually doing harm. If it’s not, then why does it matter?

So you defend copyright infringing file-sharing but deny that isoHunt enables it?

My argument remains that file-sharing does more good than harm. If file-sharing offers social benefits, we need to change the laws.

As far as isoHunt, however, we’re merely a search provider for what’s available. Everything I say about peer-to-peer file-sharing is merely my opinion. It’s not something we enable. We don’t enable file-sharing any more than Google enables the Internet.

Given all of your legal troubles, have you considered trying to proactively remove all of your infringing content, as Mininova is doing?

We won’t do that without a court order.

Could isoHunt continue to exist without linking to infringing content?

That’s like asking Google if it could exist without linking to infringing content. The Internet is what it is today because of its free and open nature. Google can’t be Google if it had to ask every site owner for permission to index their site.